Julius Cheruiyot Kibwalei v Felix Kipchoge Lagat [2016] KEELC 356 (KLR)
The bottom line
#The High Court dismissed a landlord's bid to vary a stay order and force a tenant to pay Kshs.2.1 million in rent arrears pending appeal, with costs.
What this practically means
#Executive summary
#Key legal issues
#Nature of the order issued on 1.10.2015
The order was a stay of execution of the lower court's orders of 28.5.2015 pending appeal, not a status quo order staying payment of rent; the application to vary it was misconceived.
The court reviewed its own record and found that on 11th June 2015 and confirmed on 1.10.2015 it granted stay of execution of the magistrate's orders. The stay related to breaking into the appellant's premises in Elgon View Estate. It made no order touching rent, so the applicant's premise that a status quo order barred rent payment was a misconception. The application was served but the applicant failed to attend when stay was granted.
Propriety of an advocate swearing a supporting affidavit on contested facts
It was improper for the applicant's advocate to swear the affidavit because the issues (non-payment of rent) were in contention; an advocate who does so becomes a potential witness.
The court held that where issues raised in an affidavit are in dispute, the deponent advocate becomes an adversarial party, may be required to step down from the bar into the witness box, and is liable to cross-examination. Such an advocate cannot discharge duties to court and client while entering the controversy as a witness; counsel and witness roles cannot co-exist in the same case.
Legal principles established
#- An advocate may not swear an affidavit on matters in contention between the parties; by doing so he becomes an adversarial party and may be cross-examined, and cannot be both counsel and witness in the same case.
- A party must accurately identify the order sought to be varied; where the court stayed only execution and not payment of rent, an application to vary a supposed status quo order on rent is misconceived.
Court orders
#- 1.The application dated 3.3.2016 is dismissed
- 2.Costs of the application to the appellant
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret Chief Magistrate Misc. Application No. 27 of 2015
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over orders of the Chief Magistrate's Court in Misc. Application No. 27 of 2015 (distress for rent matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Cheruiyot Kibwalei v Felix Kipchoge Lagat [2016] KEELC 356 (KLR)", Case Analysis (2016). Eldoret Chief Magistrate Misc. Application No. 27 of 2015 (Appeal) — Application dated 3.3.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/356/eng@2016-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.